Claim Construction: “support an entire body”

by Dennis Crouch

I have been waiting for the Federal Circuit’s decision in Metalcraft of Mayville (Scag Power) v. Toro.  In my patent law class last semester, we used the appeal of a preliminary injunction order as the basis for our 5th annual Patent Law Moot-Court Competition (sponsored by McKool Smith).  I want to also thank the attorneys at Boyle Fredrickson and Merchant & Gould for being good sports and providing us with documents from the case.

[Read the Decision: 16-2433-opinion-2-14-2017-11]

SCAG and TORO are competitors in the lawnmower market.  In 2016, SCAG sued TORO for infringing its U.S. Patent No. 8,186,475 that covers a vehicle (lawnmower) having an operator-platform-suspension-system. This design differs from the more traditional seat-suspension because it supports the “entire body” of the operator and helps reduce harmful shock and vibrations on users.

In the case, the district court issued a preliminary injunction against Toro to cease “making, using, selling, and offering to sell lawnmowers equipped with platform suspension systems that infringe SCAG’s patent.”  Toro appealed both the merits of the infringement case (under a proper claim construction, no infringement) and also the terms of the injunction (Failure of the injunction order to include “reasonable detail” as required by Fed. R. Civ. Pro. 65(d)).  On appeal, the Federal Circuit has affirmed, but with a slightly modified injunction.

The patent drawing below an operator platform that supports the foot rest and the seat.  In the patent drawings, the hand-controls (55) are also supported by the operator platform. However, in the accused Toro lawnmower, the controls are directly attached to the chassis and thus not supported by the operator platform.

scagpatentimage

The claims require that the operator platform “support an entire body of an operator” during operation use of the vehicle.  Toro argued that users of its mowers must keep their hands on the hand-controls during operation and – since hands are part of the body – their platform does not support the “entire body.”  On appeal though, the Federal Circuit rejected that argument for narrowing claim scope.  Most importantly, the court found that the claims do not specifically require steering controls mounted to the operator platform.  Moving from there, the court attempts (but in my view fails) to adequately address the core argument:

Moreover, the specification makes clear that the operator platform supports the entire body and that steering controls are connected to, but not part of, the operator platform. The specification consistently distinguishes the operator platform from components that may be attached to it.

The court here seems to suggest that the platform must directly support the entire body rather than through a component.  The problem with this argument is the seat (another component attached to the platform) actually supports most of the operator’s body.  For the claim to make any sense, the platform’s support function must pass through these attached components.

By accepting the broader claim construction, the court was also able to affirm the finding that Scag is likely to succeed on the merits of the case (proving infringement). Here, the district court’s order enjoins Toro from “making, using, selling, and offering to sell lawnmowers equipped with platform suspension systems that infringe Scag’s patent, U.S. Patent No. 8,186,457.” J.A. 6. Toro argues the district court’s preliminary injunction is overly broad. We do not agree. The Decision and Order in which the district court grants the motion for the preliminary injunction discusses both the claims at issue as well as the defendants’ accused products which it enjoins. J.A. 6–18. Claim 21 was argued to cover all the accused products, and Toro has made no meaningful arguments which delineated among the accused products. We have affirmed the district court’s conclusion that the patentee has established a likelihood of success that the accused products infringe claim 21 and that there is not a substantial question of validity as to claim 21. In such a case, we affirm the preliminary injunction as to the accused products.

Scope of the Injunction: Fed. R. Civ. Pro. R. 65(d)(1) requires that every order granting an injunction to “state the reasons why it issued; state its terms specifically; and describe in reasonable detail—and not by referring to the complaint or other document—the act or acts restrained or required.” Here, the order stated merely that TORO must cease “making, using, selling, and offering to sell lawnmowers equipped with platform suspension systems that infringe SCAG’s patent, U.S. Patent No. 8,186,475.”  On appeal, the Federal Circuit affirmed the order, with the caveat of limiting it to the accused products. “We affirm the preliminary injunction as to the accused products.”

Dennis Crouch

About Dennis Crouch

Law Professor at the University of Missouri School of Law. Co-director of the Center for Intellectual Property and Entrepreneurship.

38 thoughts on “Claim Construction: “support an entire body”

  1. Preliminary injunctions for patents not previously litigated are actually quite rare. Perhaps that might lead to some defendants not treating such motions seriously enough? I have the impression from the few I have seen granted and supported in Fed. Cir. decisions that a better prior art search and presentation, with supporting affidavits, [plus evidence for a large required bond?] could have been provided? E.g., with the quality of a good IPR petition which could have been filed.

  2. On obviousness, Patent Docs has this:

    link to patentdocs.org

    in which Taranto castigates the Board for failing to reason out the motivation issue.

    That the skilled person “could” have made the combination is not enough, says Taranto. Rather, the evidence has to show that the skilled person “would” have been motivated to combine the prior art teachings.

    Where does this could/would focus come from? I know it to be the test at the EPO, unassailable and invariably used in the thousands of cases that have been adjudicated since around 1980. But Taranto cites as authority Belden v. Berk-Teck, a Fed Ct case in 2015. Is there any earlier authority in the US cases, I wonder.

    1. If you read the actual case, instead of just the sound bytes, you would see that the citations for you to follow are already there….

    2. I know it to be the test at the EPO, unassailable and invariably

      Your commercial for “EPO uber alles” already fails along the lines of stare decisis – as has been explained to you repeatedly over the years, but for which, your mind, NOT eager to understand, refuses to do so.

      MaxDrei, your Merry Go Round is a blight.

  3. Obtaining a preliminary injunction halting a product manufacture is normally supposed to require the posting of a bond. I did not see any mentioned in this opinion?

  4. 1. A riding utility vehicle, comprising:

    a chassis that supports a drive train;

    a seat;

    an operator platform that supports the seat and an entire body of an operator during use of the utility vehicle;

    a suspension system connecting the operator platform to the chassis and permitting relative movement therebetween, the suspension system having a variable stiffness and including a stiffness adjuster that is adjustable for varying the stiffness of the suspension system, the stiffness adjuster being operable by a seated operator; and

    steering controls for directing movement of the utility vehicle, the steering controls being connected to and moving in unison with the operator platform.

    1. The structure claimed is

      drive train;

      chassis, supporting drive train;

      seat;

      operator platform, the seat mounted on the operator platform;

      suspension system between chassis and operator platform,

      stiffness adjustor connected to the suspension system;

      steering controls connect to the operator platform.

      The examiner allowed the claims because of the stiffness adjuster.

      Point 1. What is a stiffness adjuster?

      Point 2. Why have all that other functional language in the claim if it truly is unimportant for novelty? Just get rid of it because one has to prove the functional language in proving infringement and the language can result in the claims being held indefinite, which they clearly are.

      From the NOA:

      “With respect to independent claim 1, the prior art either alone or in combination fails to disclose, teach or suggest: a riding utility vehicle, comprising: a suspension system connecting the operator platform to the chassis and permitting relative movement therebetween, the suspension system having a variable stiffness and including a stiffness adjuster that is adjustable for varying the stiffness of the suspension system, the stiffness adjuster being operable by a seated operator; and steering controls for directing movement of the utility vehicle, the steering controls being
      connected to and moving in unison with the operator platform.”

      1. Why is it indefinite? Is it because YOU don’t know what a stiffness adjuster is? Or is it “seat” that is tripping you up? Should the claim recite the kind of seat? Leather, cloth, bucket, bench? Or is it the dimensions of the seat that are indefinite?

        1. Ned, Are you claiming that such is not known – or could not be known – by a Person Having Ordinary Skill In the Art?

          What is a screwdriver?

        2. Stiffness adjuster is a term of art used to refer to the class of mechanisms that adjust stiffness in suspension systems. Sometimes they adjust a restriction to fluid flow in a dash pot (shock absorber). Sometimes they are electromagnetic and adjust the strength of a suspending magnetic field. Sometimes they change the baseline compression of a spring. Sometimes they adjust the baseline fluid pressure in a dash pot.

          I hope you find that helpful Ned.

  5. It seems impossible that anytime in the last half of the 20th century that a limitation about a vehicle seating platform “supporting an entire body” could possible contribute to patentability. Did the patentee actually need and rely on that “entire” language to get their patent? How could that not be an obvious feature in view of the zillion operator platforms in prior art vehicles? Surely the answer isn’t “because lawnmower.”

    Toro argued that users of its mowers must keep their hands on the hand-controls during operation and – since hands are part of the body – their platform does not support the “entire body.”

    It’s like arguing that a chair with a leg rest “metimdoesn’t support my entire body” because … my hands are on the keyboard soes! The pencil I use to write is supporting my arm! That’s very silly.

    1. What is new is that the platform that “supports the entire body” is suspended (i.e, supported by springs, shock absorbers, etc.). So, since in the prior art, only the seat was suspended and the users feet were on the deck receiving all the vibration of the engine, blades and jolts of the wheels, yes the “entire” language was likely relied upon.

      Such language may have been deemed preferable to the litany of component A operatively coupled to component B and wherein the at least one suspension element is at least one of a resilient member, a damper, a spring and a dashpot, that would have otherwise had to have been recited.

      1. Of course its preferable. If the precise relationships were spelled out, it would be harder for a Judge to contort the claim to read on the potential infringer’s product.

      2. since in the prior art, only the seat was suspended and the users feet were on the deck

        So these guys invented fully suspended seating platforms?

        Oh but wait! This is the super unpredictable “lawnmower seat arts” we’re talking about. Nothing else is remotely analogous.

        Super serious stuff! Like rocket science, really, except with the rocket or the science.

        1. The fact that it had never been done before on a lawnmower and as soon as it was, a competitor comes along and does almost the same thing has no bearing on whether it was obvious or not…. so long as you can roll your eyes and type suuuuuuper seeeerious.

          1. Les asserts: “it had never been done before on a lawnmower and as soon as it was, a competitor comes along and does almost the same thing has no bearing on whether it was obvious or not”

            Absolutely right Les. Absolutely nothing at all to do with the question whether the claimed subject matter was (at the relevant date) obvious or not, under 35 USC 103. Lawnmower makers design their products to cost as little as possible, consistent with selling them in numbers as high as possible. The judgement, whether to include an expensive fully suspended seating platform, is a commercial not a technological call.

            Whatever is it, that leads you to suppose that these respective commercial acts have any relevance to patentability whatsoever?

            1. Not sure that I understand your perspective, MaxDrei – it is coming across that you think that commercial motives have nothing to do with innovation and patentability.

              Which of course, is something that is prima facie untrue.

              Commerce is one great “neccessitator” (in the lines that “necessity is the mother of invention”)

            2. You are mistaken Max. In the U.S. such “Secondary Considerations,” are to be part of the Obviousness analysis.

              If a suspended user platform was never used, is invented and implemented by one manufacture, has commercial success and is then copied by a competitor, for instance, that is clear evidence of non-obviousness. It can be non-obvious because no one new there was a problem, a problem was know, but the source of the problem was not or because the problem and source were know but the solution was not.

              1. Further to my previous:

                ” Rebuttal evidence may include evidence that the claimed invention was copied by others. See, e.g., In re GPAC, 57 F.3d 1573, 1580, 35 USPQ2d 1116, 1121 (Fed. Cir. 1995); Hybritech Inc.v. Monoclonal Antibodies, 802 F.2d 1367, 1380, 231 USPQ 81, 90 (Fed. Cir. 1986).”

                MPEP 2145 just above the middle of the third paragraph: link to uspto.gov

                1. And what Les do you understand by the words “secondary” and “rebuttal”. Do they add to meaning? Or do you dismiss them as 100% superfluous?

                2. Well… Such information is not traditionally included in an application. Applications are usually filed before commercialization or as soon thereafter as possible. So, practically, evidence of copying can’t be presented until after an Office Action asserting obviousness, and in that sense, is a rebuttal. But, I don’t bestow any special significance to that word.

                  “Secondary” surely does NOT mean “can be ignored,” or “not to be considered.” It has to do with the nature of rebutal, I suppose. First there is a prima facie showing, with I suppose “primary” evidence, then there is a rebuttal with “secondary considerations” Shrug….. In any event, “secondary” does not support your: “Absolutely nothing at all to do with the question whether the claimed subject matter was (at the relevant date) obvious or not,”

              2. Oh come on Les. You cannot be serious. Suppose the subject matter you claim is obvious. Then suppose you introduce a BOGOF sales promotion campaign for your MAGIC CARPET lawnmowers and increase sales and market share enormously. That sales promotion doesn’t transform the obvious subject matter (A lawnmower with a fully suspended driving platform.) into a non-obvious invention.

                Predatory pricing is useful to drive competitors out of business. Using it to transform obvious claims into non-obvious ones is a bit fanciful.

                1. Max, the infringer is free to present pricing evidence and to make that argument. They are also free to explain why, since they have been in the lawn mower business for 80 years, they have not before made this allegedly obvious improvement until they were shown how a year ago last Thursday.

                2. Les you cannot be serious. Now you tell me the burden would be on me, the infringer, to explain why my lawnmower contains such bog standard modern (ie up to date) features as rust-resistant steel structural members (or aluminum, or composite materials) power-assisted steering, an upholstered seat for the driver or an air-conditioned driver’s cab. These things, Les, are no more or less “obvious” than a fully suspended driver platform, for a land vehicle in today’s world, rather than that of 80 (or 30) years ago.

                  Patentee’s answer: Because my claim is not to any old land vehicle. Rather, it is expressly limited to a lawnmower, OK?

                  Les, do you think John Deere would ever take you seriously, if you were asserting such a claim?

                3. No. I’m telling you that if you the infringer are alleging that my patent for a lawnmower variation is invalid for being obvious or lacking inventive step, after a patent examiner has judged otherwise, and I show the court that we are having commercial success with the patented design and that you ,the infringer, only started making an infringing copy 6 months after our application published, or after ours hit the market, the burden is on you to explain why you didn’t make your obvious variation during any of the previous 80 years your company has been in business. If you are so skilled in the art as to find our design obvious, surely it was also obvious to you that users would prefer not to be jostled and vibrated and you have been working on ways to enhance rider comfort lo these many decades, and yet you did not arrive at our solution until you saw our solution.

                  hmmmm

                  Yes, the burden is on you to explain that.

            3. MD The judgement, whether to include an expensive fully suspended seating platform, is a commercial not a technological call.

              Yup.

              Basic stuff. But too complicated for our s00per serious defenders of junk patents. Watch ’em pull out some case law about “secondary factors” now. That’ the kind of “judicial activism” they love! But they’re totally not hypocrites. Nope.

Comments are closed.